IFES, '2019 Presidential Election in Ukraine Post-Election

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2019 Presidential Election in Ukraine: Post-Election Report May 2019 This report was developed by the International Foundation for Electoral Systems (IFES) through the support of the United States Agency for International Development (USAID), Global Affair Canada and UK aid. The opinions expressed herein are those of the author and do not necessarily reflect the views and opinions of do not necessarily reflect the views of the UK government, USAID, the United States Government, Global Affairs Canada or the Government of Canada.

4 IFES Ukraine Executive summary The presidential election in Ukraine held across two rounds on March 31st and April 21st represents an important electoral milestone for democracy in Ukraine. This was the first major national election held since the Central Election Commission (CEC) was renewed in September 2018. Observers from a diverse range of international and domestic monitoring missions stated that election day was carried out in a generally professional and smooth manner across the country. The efforts of all levels of election administration – as well as the large margin of victory for Volodymyr Zelenskyi – leave little doubt that this election represents a democratic achievement for all involved.

However, there are a number of outstanding issues that must be addressed both to improve future presidential elections as well as to prepare Ukraine for the anticipated parliamentary elections in only a few months. It is critical that election stakeholders reflect seriously on the 2019 presidential election to draw lessons learned and consider observer recommendations. The legal framework requires significant change to meet international standards and best practices. While the Presidential Election Law is arguably the least flawed of the laws governing elections, only a few of the recommendations for improvement by the Council of Europe’s Commission for Democracy through Law (Venice Commission), the Organization for Security and Cooperation in Europe (OSCE) Office for Democratic Institutions and Human Rights (ODIHR) and domestic observer missions have been addressed.

The laws governing elections must be adapted and clarified in order to remove conflicting language, clarify key definitions and roles of electoral stakeholders, require sanctions for electoral offenses, and further bolster the democratic process to make it more inclusive and transparent.

In addition to legal shortcomings, a number of outstanding issues pertaining to the administration of the presidential election surfaced in domestic and international observer reports as well. Key areas of concern includes: the centralized nature and perceived lack of transparency of the CEC; the large composition of lower-level election commissions and the frequent replacement of their members, undermining their efficiency and professionalism; the lack of effective, proportionate and dissuasive sanctions for election-related offences; the cumbersome procedures for changing the place of voting without changing a voter’s address and de-facto introduction of active voter registration for certain groups of citizens; a general lack of accessibility for persons with disability at odds with Ukraine’s international commitments; short timelines for election dispute resolution; the lack of campaign finance transparency; negative campaigning; abuse of administrative resources and the lack of a level playing field in the coverage of the campaign in media; as well as the significant number of “technical” candidates standing for election.

Despite these issues and challenges, there were a number of significant improvements noted by observers and electoral stakeholders alike for this election. The major improvements noted by the observers include: better preparedness of the CEC and other authorities to combat cyber-attacks on key election infrastructure; a competitive campaign environment with respect for the fundamentals freedoms; lack of major violations during voting, vote counting and vote tabulation; the effective role of police in maintaining and protecting public order on election day; and high-quality wide-scale training of the election commissioners provided with IFES technical assistance.

This report provides analysis of key electoral issues as well as achievements from the 2019 presidential election, and offers recommendations for stakeholders to improve future democratic processes.

5 2019 Presidential Election: Post-Election Report Background Under the Constitution, the President of Ukraine is elected for a five-year term and may serve two consecutive terms; there is no limitation on the number of nonconsecutive terms. The first presidential election after Euromaidan in 2014 was held on May 25, 2014, triggered by the early termination of office of ousted President Viktor Yanukovych, who fled to the Russian Federation in February that year. Early parliamentary elections were held in October the same year. Following Euromaidan, Ukraine faced a number of serious challenges ranging from economic downturn to the illegal annexation of the Crimean Peninsula by the Russian Federation and de facto loss of control over parts of Donetsk and Luhansk oblasts to Russian-backed separatists.

Aspirations for swift reforms inspired by Euromaidan have largely not materialized. Several reform initiatives launched since 2014 have never been fully or properly implemented, such as: decentralization, the fight against corruption and reform of the judiciary. The CEC that organized the notoriously flawed 2012 parliamentary elections continued to exercise its powers until 2018, even though the terms in office for most of its members expired in 2014. CEC members with expired terms were replaced only in September 2018. The lead up to the 2019 presidential election was marked by widespread loss of public trust in the political elite and state institutions, failed attempts to fundamentally change the electoral system and laws governing elections as well as the questionable introduction of martial law in late 2018 initiated by outgoing President Petro Poroshenko.

Legal framework The preparation and conduct of a presidential election is regulated by the Presidential Election Law, which has undergone several amendments since its adoption in 1999. The last significant amendments were introduced in 2014 and 2015. Other aspects of the election process are governed by the 2001 Law on Political Parties in Ukraine, the 2004 Law on the Central Election Commission, and the 2007 Law on the State Register of Voters. Sanctions for election-related offenses are set out in the 2001 Criminal Code and the 1984 Code of Administrative Offences. Election disputes are resolved by courts (local courts of general jurisdiction and administrative courts) based on the 2004 Code of Administrative Adjudication.

The CEC supplements the legal framework by adopting resolutions to specify certain provisions of the Presidential Election Law (including the procedures for campaign finance oversight, observer accreditation, compilation of vote count and tabulation protocols, and for resolving electoral disputes by lower-level election commissions).

The electoral legal framework overall remains fragmented and comprises a number of laws adopted at different times that sometimes contradict each other. ODIHR and the Venice Commission have repeatedly recommended to harmonize the electoral legal framework through the adoption of a consolidated Election Code, but their recommendation has not been fully implemented. In November 2017, the Ukrainian parliament, the Verkhovna Rada, adopted a draft harmonized election code in the first reading. Prior to the second reading of the code, MPs proposed more than 4,000 amendments which were considered and further elaborated on by a working group established by the Rada’s Committee on Legal Policy and the Judiciary (the Committee).

While the working group has now accomplished the task of processing all the amendments to the draft code, the draft code is still required to be considered by the Committee and will need a majority of 226 votes to be adopted

6 IFES Ukraine in the second reading by the 423-member Verkhovna Rada. The code would enter legal force only if promulgated by the President. In the current political environment, there is a lack of consensus among MPs on such key elements of the draft code as the choice of electoral system for parliamentary and local elections, the procedure for establishing lower-level election commissions, as well as whether or not to fully enfranchise IDPs and mobile groups of citizens, among others. Thus, the prospect for adopting the election code well in advance of the 2019 October parliamentary elections is dwindling.

Given that the adoption of the draft election code well before the fall 2019 elections does not seem realistic and further will contradict the internationally recognized principle of stability of election laws, the Rada needs to focus on fixing the flaws in the existing laws governing elections in Ukraine. Election security Despite serious external and internal security threats to the 2019 presidential election, for the most part these threats never materialized. The situation on the line of contact in the East between the Armed Forces of Ukraine and Russian-backed separatists remained the same as before the election and did not affect election preparations in the adjacent districts in government-controlled areas.

This is a positive sign and increases the prospects for holding local elections in newly amalgamated communities in these areas. At an early stage of the election process, certain far-right para-military groups made statements that they would “protect” the election by force; these claims never materialized into concrete action. The role of the police during the first and second round in protecting public order received a positive response from election observers across the board. While cybersecurity attacks were an issue of concern during the 2014 elections, installment of the new cybersecurity equipment procured with IFES support, as well as cybersecurity trainings delivered to the CEC secretariat staff contributed to preventing any serious external interference in the electronic databases (voter registers, results management system, etc.) administered by the CEC.

The CEC should further continue its efforts aimed to ensure an appropriate level of cyber security protection of its electronic systems.

Election administration The Central Election Commission (CEC) Under the Presidential Election Law, the presidential election is administered by a three-tier system of election commissions: the Central Election Commission (CEC), District Election Commissions (DECs), and Precinct Election Commissions (PECs). For the 2019 election, the CEC created 199 DECs and established 29,289 PECs in-country. No DECs or PECs were established in the non-government controlled areas of Donetsk and Luhansk oblasts, as well as in Russian-annexed Crimea and Sevastopol. For out-of-country voting, the CEC established 101 PECs at diplomatic and consular representations of Ukraine abroad.

Due to security threats and based on a suggestion by the Ministry of Foreign Affairs, the CEC decided to close all polling stations in the Russian Federation and referred some 54,000 registered voters residing in Russia to vote at diplomatic representations of Ukraine in three neighboring states.

According to the assessment of most international election observers (including OSCE/ODIHR, NDI, and IRI), the CEC operated in a professional, collegial manner and met all legal deadlines. While CEC operations were assessed as transparent in general, international and domestic observers criticized

As in previous elections, the CEC did not initiate public consultations to discuss key draft resolutions with election stakeholders. The CEC should consider establishing an expert council to discuss its key draft resolutions, introduce public consultations, and abstain from holding closeddoor preparatory meetings.

Ukrainian NGO Civil Network OPORA raised concerns about CEC attempts to question the presence of OPORA and other domestic observers at certain CEC sessions, in violation of the Presidential Election Law that allows domestic and international observers to be present at CEC meetings without an invitation or the Commission’s consent. A lack of transparency has had consequences in terms of public perception. In some cases, the CEC did not effectively react to concerns raised by certain presidential candidates (for instance Anatoliy Hrytsenko) resulting in wide-scale and completely unreasonable speculations in the media.

These speculations included that the CEC allegedly attempted to “legitimize vote buying,” was attempting to falsify the election result by ordering the printing of double the amount of ballot papers needed for the first round, and that the State Register of Voters was of poor quality.

The CEC website still needs to be modernized to ensure enhanced accessibility for all voters, including voters with disabilities, to ensure that CEC decisions and voter information, as well as other data are fully accessible. The CEC de facto restricted access to information on campaign finance by rejecting requests by NGOs for access to data on the campaign expenses of presidential candidates (the CEC ruled that such data is covered by banking secret rules). Much can be done to increase the transparency of the CEC. Enhancing transparency of the CEC is crucial for building public trust and strengthening the credibility and accountability of the institution.

As a legacy from the past, the CEC remains a highly centralized institution. While the Law on Central Election Commission allows the CEC to establish regional branches functioning on a permanent basis, these have never been established due to lack of budget, organizational and other resources. As in previous elections, any irregularity at district or even precinct level requires CEC action in Kyiv. Such centralization can hardly be considered necessary and undermines the collegial nature of the institution, as each CEC member is in charge of supervising elections in a particular region of Ukraine and has to intervene personally once irregularities occur in a particular region/district.

The Rada should consider changes to the Law on Central Election Commission to specify the mandates of the CEC branches in the regions, while the government should allocate resources needed to establish such branches.

The CEC Chairperson Tatiana Slipachuk and the Head of Sector of Websites Functioning Volodymyr Som present a draft version of Commission’s new website to the IT-experts and media representatives in December 2018.

8 IFES Ukraine District Election Commissions (DECs) Before the first round of the presidential election, the CEC formed DECs on time and based on nominations filed by the presidential candidates. While the Presidential Election Law establishes that the minimum composition of a DEC is 12 members, it does not impose any restrictions on the maximum members of a DEC.

A presidential candidate is entitled to suggest one commissioner for each DEC subject to approval by the CEC if the proposed nominees comply with the legal requirements for DEC membership. The Presidential Election Law requires all DECs to be formed anew by the CEC within a short ten-day deadline before a potential second round based on submissions of the two presidential candidates running in the second round. Both candidates are entitled to nominate seven DEC members each, while the DEC is to comprise 14 members overall.

For the first round of the 2019 presidential election, the CEC initially registered 44 presidential candidates (of which five later withdrew their candidacy), most of whom nominated members to DECs. Due to the large number of nominees proposed, DECs on average included 37 members. The smallest DEC was No 105 in Luhansk oblast with 29 members, while the largest DECs included 41 members (DECs Nos 174 and 176 in Kharkiv oblast). Large membership does not contribute to the effective performance of DECs and unnecessarily complicates election administration operations as most election-related documents must be signed by all the DEC members.

Large DECs also result in overcrowding of their premises, a fact noted by most election observer groups as negatively affecting DEC operations and transparency during the tabulation of votes, since all DEC sessions can further be attended by observers, presidential candidates and their proxies, journalists, and members of the CEC. The Presidential Election Law, therefore, should be reviewed to establish the maximum composition of the DECs to make sure they could effectively manage the election process.

Before the second round, all DECs were created anew by the CEC and both presidential candidates, nominated candidates to most DECs as foreseen by the Presidential Election Law. Petro Poroshenko nominated seven members to all DECs, while Volodymyr Zelenskyi did not suggest any nominees in two election districts (Nos 57 and 58 in Mariupol). The vacant seats on these DECs were filled by the CEC based on the proposal of the CEC Chair, as envisaged by law. OPORA noted that the overall process of the DEC re-establishment before the second round was much better compared to the first round, and both presidential candidates received a balanced representation on the DECs, including DEC executive positions.

The approach towards establishment of the DECs laid down in the Presidential Election Law is problematic in a number of aspects. Complete re-establishment of DECs for the second round might have a negative impact on the level of professionalism of DEC commissioners, as the narrow timeframes between the rounds do not allow for sufficient time to properly train new DEC members. Further, if candidates decide not to propose any nominees to certain DECs, it might be difficult for the CEC to identify enough prospective commissioners and bring into question the principle of equal representation on the commission.

Furthermore, the formation of DECs and, subsequently, PECs may then suffer from significant delays that would negatively impact preparations for the second round. For these reasons, the provision in the Presidential Election Law requiring complete re-appointment of election commissioners shortly before a potential second round should be reconsidered.

9 2019 Presidential Election: Post-Election Report According to the preliminary statement of the International Election Observation Mission (IEOM)1 , some interlocutors alleged so-called ‘technical’ candidates who are in fact affiliated with the leading candidates had registered in part to obtain seats in lower-level commissions, which undermined the principle of equal representation as well as the purpose of the proportional allocation of executive positions. Some nominees for election commissions were not aware they had been proposed to be a member of the election commission. While no such issues were reported in the second round, the role of “technical candidates” in proposing nominees to lower level election commissions should be significantly restricted.

The Presidential Election Law fails to set a deadline for replacements of commissioners at lower-level election commissions; presidential candidates are free to replace election commissioners appointed by them at any time, including before, during and after election day. According to the IEOM, 39 percent of the initially appointed members of DECs established for the April 21 first round were replaced by the presidential candidates who nominated them or on their own initiative before election day. The lack of any restriction on the right to replace members of election commissions has been repeatedly criticized by the OSCE/ODIHR, the Venice Commission, and IFES as it has a negative impact on the professionalism of the election commissions.

After the initial formation of DECs for the second round, candidates submitted requests for changing 8 percent of the initially appointed members. These replacements were criticized by domestic and international observers, including for rendering training provided to DEC members less effective.

According to the Civil Network OPORA, 65 percent of the DEC members initially appointed before the first round previously served on an election commission. This figure is somewhat lower compared to the 2010 presidential election (78 percent of the commissioners had previous election experience) and the 2014 presidential election (72 percent had previous experience). The share of DEC members appointed for the second round with previous election experience increased to 69 percent, indicating that 31 percent of the second round DEC commissioners were not commission members during the first round.

The CEC, with IFES’ technical assistance and through the CEC Training Center, organized a wide-scale training of DEC and PEC members before the first round to ensure that they could effectively exercise their duties and were aware of key election procedures. However, the fact that presidential candidates can appoint untrained commissioners to serve on election commissions in both the first and second round, their frequent and unrestricted replacement of commissioners, and the narrow timeframes for establishing the DECs and PECs for the second round vote still poses a significant risk and may have a negative impact on the professionalism and performance of election commissioners in future 1 The International Election Observation Mission (IEOM) was a joint effort of the long-term OSCE/ODIHR Election Observation Mission and short-term observer delegations from the OSCE Parliamentary Assembly, the Parliamentary Assembly of the Council of Europe, the European Parliament and the NATO Parliamentary Assembly.

IFES in cooperation with the CEC and the joint IFES-CEC Training Center organized a five-day training of trainers (TOT), who in turn conducted 106 regional trainings for more than 3,000 District Election Commission (DEC) members.

10 IFES Ukraine elections. The laws governing presidential, parliamentary and local elections should be amended to exclude the possibility of appointing untrained commissioners and to provide for their mandatory certification by the CEC Training Center before appointment to the DECs and PECs. Gender balance was ensured during the initial appointment to the DECs: 55 percent of the DEC members were women.

Women were also largely represented in leadership positions on DECs: some 58 percent of these positions were held by women, according to OPORA. This level of representation is a welcome step to ensure a balanced representation of women and men on the DECs. Parties and candidates participating in elections should continue their efforts aimed to ensure a balanced representation of women on DECs and PECs.

Both domestic and international observers noted that DECs – both before the first and the second round – performed their tasks adequately. Some DECs, however, lacked operational resources and adequate office premises. This reduced the transparency of DEC operations including during the tabulation of votes on election day where candidate, domestic and international observers had difficulties following the tabulation process. The CEC needs to ensure that in future elections DECs have sufficient financial, technical and other resources to implement their mandates and ensure transparency of their operations, including during the tabulation of votes on election day.

Transparency of DEC operations remains an issue, as many DECs opt not to transmit the legally required data (such as copies of the decisions made by the DECs) to the CEC for central publication on the CEC website. Similar cases were noted during previous nationwide elections in 2012 and 2014. All election laws should provide for measures aimed at ensuring that all DEC decisions are available on the CEC website. The CEC should ensure that DECs have the equipment and resources necessary to enable them to promptly transmit their decisions and other legally required data to the CEC through the “Vybory” electronic system.

Precinct Election Commissions (PECs) Under the Presidential Election Law, the procedure for establishing PECs is the same as for the DECs in both the first and second round, whereby each presidential candidate is entitled to nominate a certain number of PEC members (first round candidates can nominate one PEC member each, while second round candidates can nominate from six to eight commissioners to each PEC depending on the size of the precinct in terms of registered voters). Candidates are entitled to replace PEC members they have nominated at will at any time. As with DECs, the Presidential Election Law does not envisage mandatory training for PEC members or require previous experience for being appointed to a PEC.

As with DECs, PECs must be entirely renewed for the second round, and DECs must reestablish the PECs in their election district within five days prior to the second round vote.

Members of a precinct election commission in Kyiv prepare the polling station for opening on March 31, 2019.

11 2019 Presidential Election: Post-Election Report Domestic and international observer reports confirmed that all PECs for the first round were established by DECs within the legal deadline. The average number of commissioners on each PEC amounted to 14 members. In the second round, most PECs were formed in time; however, delays occurred in six DECs that were struggling to find enough prospective commissioners when the candidates failed to nominate them in the required numbers.

According to OPORA, on average, 15 percent of PEC members were appointed based on proposals of DEC chairs, with some being appointed after the official deadline. In both rounds, the executive positions on PECs were generally distributed equally between the candidates, in line with legal requirements. The IEOM noted other factors that negatively affected the establishment of PECs, including “poor quality of nomination documents submitted by candidates to the DECs and shortfall of nominees” as well as the “over-involvement of candidate proxies when allocating executive positions” on the PECs.

In the first round, OPORA observers noted a number of cases in which the PEC commissioners proposed by candidates were rejected by DECs for this reason. In some cases, commissioners were unaware of their appointment to serve on a PEC and many subsequently filed a request for withdrawal from the commission.

Similar issues were reported by the IEOM in the second round. In most cases, these vacancies were filled by members nominated by the DEC chair to serve on the PECs. The Presidential Election Law, for instance, may give the leading role in establishing the DECs and PECs to the parties that passed the electoral threshold in the most recent parliamentary elections to prevent frivolous candidates from receiving representation on DECs. The Criminal Code should provide for sanctions for proposing nominees for membership of election commissions without their consent or based on falsified nomination documents.

After being established, PECs faced similar problems as the DECs: PEC members were frequently replaced on the initiative of the candidates who nominated them; in many cases, they were replaced by new members with little or no election experience. This was especially the case in the second round, although the number of replacements of initially commission members at PEC level is not known for the first or second round. Given the similarities in procedures for establishing PECs and DECs, the recommendations outlined above for improving the formation and operation of DECs are also relevant to PECs.

Voter registration The procedure for voter registration is governed by the Law on State Register of Voters, while the procedures for the compilation and distribution of preliminary and updated voter lists for each election event are governed by the respective election law. Voter registration is passive and continuous, whereby all eligible citizens of Ukraine are included into the State Registry of Voters (SRV) based on information on citizen status (birth, death, conscription, imprisonment, etc.) provided by various public authorities (the State Migration Service, Ministry of Interior, Ministry of Defense, Ministry of Justice and others).

These authorities are in charge of updating SRV data on voters, both before and during the election period. Voter registration is centralized; the SRV is administered by the CEC while the updates and changes to SRV data are made by the voter register maintenance bodies (RMBs) at rayon level.

12 IFES Ukraine Before the legally established deadline, the RMBs must produce preliminary voter lists for each election precinct (the territory of a polling station) based on the SRV data and deliver them to the respective PEC. The Presidential Election Law provides that the PEC must display the preliminary voter lists in the polling station for public scrutiny. Voters are entitled to challenge inaccuracies on the preliminary voter lists to the PECs, courts, and RMBs. PECs must forward each received complaint to the relevant RMB for further consideration, while the courts must obtain the relevant RMB opinion on the complaint before adopting any decision to correct the voter lists.

The voter should also be able to access the state voter register online to check their individual registration but cannot apply for corrections or challenge incorrect registrations online. The updated voter lists are to be delivered to the PECs no later than two days before the vote. The updated voter lists reflect changes to civil registration data, deceased voters, those who have turned 18 years of age, and corrections requested by voters. No changes to the updated voter lists (except corrections of misspelled names and similar technical errors) are allowed on election day.

While domestic and international election observers did not note serious issues related to the quality of the voter lists and the overall voter registration process, the procedure for updating the SRV data may raise concerns in future elections. This is due to the fact that the primary responsibility for registering the place of residence of citizens rests on local self-governance bodies, which often fail to transmit data on changes in residency registration to SRV and other state registers in a timely manner. Such failure is rooted in insufficient financial, human and technical resources at the local level and modest sanctions for failure to submit the required data to SRV.

Local self-government bodies should be sufficiently resourced to allow for timely (continuous) transmission of relevant data on citizens’ place of residence in Ukraine to the SRV. A system of sanctions for delayed/incomplete transmission of such data to the SRV could be considered to ensure that the SRV data is accurate and up-to-date. Voters who cannot vote at their assigned polling station, such as internal displayed persons (IDPs), economic migrants, and others, can change their place of voting without changing their place of residence in order to vote at another polling station. To do so, a voter must file a written application to the relevant RMB no later than five days prior to the vote.

The procedure for changing the place of voting is the only option available for election participation of voters who are registered in the nongovernment controlled areas of Ukraine in Crimea and Donbas where no RMBs, PECs, and DECs have been formed. This means that eligible Ukrainian citizens (whether they have official IDP status or not) must undergo this procedure in order to exercise their constitutional right to vote. Before the second round, 325,604 voters temporarily changed their place of voting, including 75,607 IDPs. The total number of IDPs on voter lists for the second round was near similar to the first round (130 IDP voters less that in first round).

The procedure for changing the place of voting without changing the electoral address (place of official residence) proved to be problematic for a number of reasons. First and foremost, IDPs and economic migrants must undergo the procedure to change their place of voting without changing their electoral address before each election event in which they want to take part. In practice, this means that the governing principle of passive voter registration does not extend to these categories of citizens. The IEOM stated that “the need for voters to renew ... requests [to change the place of voting without changing the electoral address] represents an unnecessary burden, especially for internally displaced persons (IDPs), voters abroad, and persons with disabilities.” Before the second round, voters had only eight days to change their place of voting before election day, in contrast to more than 80 days

13 2019 Presidential Election: Post-Election Report available for the procedure prior to the first round. This calls for reform of the current voter registration system as laid out in the Law on State Register of Voters. The voter registration system strongly depends on residence registration, which, despite attempts at reform, is still fundamentally based on the discriminatory Soviet “propiska” system. The “propiska” system is permission based rather than declaration based (a citizen has to obtain permission from the authorities to change their place of residence). Many eligible citizens are barred from changing their registered place of residence to their actual place of residence, and thus only have the option to temporarily change their place of voting ahead of each election event in order to exercise their right to vote.

Barriers to change the place of official residence are well-documented in reports of NGOs and especially affect voters who rent or lease their accommodation due to resistance of the owners to grant permission or provide the documents that will allow the voter to officially obtain residence registration at the place where they actually reside. In the long-term, the government should reform the overall system of residence registration in Ukraine towards a declarative approach for residency registration to be in line with international standards.

In local elections and in the single-mandate constituency component of parliamentary elections, there is no option to temporarily change one’s place of voting without changing one’s electoral address, leaving IDPs and economic migrants practically disenfranchised in these respective elections unless they somehow manage to register at their place of actual residence. This may be considered discriminatory to these groups of otherwise eligible voters. The issue is properly addressed in Draft Law No 6240. This draft law aims to simplify the voter registration system, remove existing legal and practical barriers created by the outdated residence registration system, and enfranchise IDPs and economic migrants in all elections at the place where they actually reside.

The Rada needs to accelerate the consideration of Draft Law No 6240 and adopt it into law well in advance of the next parliamentary elections in October 2019. In the long term, the overall system of residence registration should be brought in compliance with international standards. While the Presidential Election Law does not require IDPs to substantiate the reasons for changing their place of voting, other voters are required to file documents supporting the requested change in voting place. This is an unnecessary and cumbersome requirement, which might prevent many voters from changing their place of voting simply because they do not possess the necessary documents to support their request.

Given that changing the place of voting cannot result in multiple voting of the same voter at different polling stations or multiple inclusion of the voter on different voter lists, the Law on State Register of Voters should not require voters to file documents supporting their request for changing place of voting without changing their electoral address (residence registration).

Both domestic and international observers reported long queues of voters wishing to change their place of voting near the RMBs, especially in the last days before the deadline. The CEC should take A female voter is making up her mind in the first round of the presidential election.

14 IFES Ukraine further steps to increase voter awareness of the procedure for changing one’s place of voting and encourage RMBs to introduce a queue management system to simplify the process. The legal timelines for updating voter lists/changing the place of voting temporarily, for ballot printing, and for the formation of PECs are interdependent but do not appear to be harmonized in practice.

While ballot papers are printed with 0.5 percent surplus for each polling station based on SRV information about the preliminary number of voters registered in the precinct, the Presidential Election Law de facto envisages procedures that may substantially alter the final number of voters in the precinct after the printing of ballots: voters may request to temporarily change their place of voting and updates to the voter lists may continue even after ballot papers have been delivered to the polling station. In this election, several polling stations had fewer ballots than registered voters on the updated voter lists.

Even though a 100 percent turnout is uncommon, an increase in turnout combined with a large discrepancy between the final number of voters and the amount of printed ballots might result in voters not being able to exercise their right to vote simply due to the shortage of ballot papers in some precincts.

In the second round, the deadline for formation of PECs coincides with the deadline for temporarily changing the place of voting. Late establishment of PECs for the second round effectively prevents members appointed late from changing their place of voting. This may potentially disenfranchise PEC members who serve away from the precinct where they are on the voter list. The legal timelines for printing ballot papers, for the formation of PECs, and for updating voter lists/temporarily changing the place of voting should be harmonized for the reasons indicated above. Pursuant to the Code of Administrative Adjudication, courts must consider all lawsuits related to inaccuracies in voter lists no later than two days prior to election day and deliver their decisions to the PECs for them to update the voter list before the beginning of the vote.

However, in more complicated cases, such decisions may be delivered later, especially if the court for some reason did not receive the RMB’s opinion on the complaint in time. While court decisions are mandatory and failure to implement them may entail criminal liability, the election laws do not permit any changes to the voter list after the opening of polls on election day. Any room for conflicting interpretations should be eliminated from the legal framework. The Code of Administrative Adjudication should be clarified to provide that court decisions in cases related to voter list inaccuracies must be delivered to the PECs before the opening of polls on election day.

During both rounds of the presidential election, observers noted isolated cases of inaccuracies on the voter lists, such as the inclusion of deceased voters and non-inclusion of eligible voters with residence in the precinct. While the Presidential Election Law makes it clear that no changes to the voter lists are allowed after the opening of polls on election day, it fails to provide any guidance for PECs as to how to react to obvious inaccuracies or to cases where voters arrive to the polling station after the opening of polls with a valid court ruling that they are to be placed on the voter list for the election at this particular precinct.

Candidate nomination and registration The right to stand for president is granted to any voter who has reached 35 years of age, resided in Ukraine for the 10 years before the election, and have command of the state language. The prospective candidate must also pay an electoral deposit of UAH 2.5 million. The Venice Commission

15 2019 Presidential Election: Post-Election Report and ODIHR have repeatedly criticized the residency requirement for being unreasonably restrictive, contradicting international standards and best practice. While the Constitutional Court of Ukraine ruled that the electoral deposit does not violate the right to be elected enshrined in the Constitution, the Venice Commission and ODIHR repeatedly stated that the size of the deposit is substantial and as such represents a restriction on candidacy.

They recommended that the Presidential Election Law should establish a clear threshold for its partial or full refund, for instance, in the form of a percentage of votes cast for a particular candidate. Significant monetary requirements can also have a disproportionate negative affect on people from historically excluded or under-represented groups, such as women, minorities, and other identities. Out of the 44 initially registered presidential candidates, only four of these were women.

The Presidential Election Law should clearly specify the criteria and the approach for calculating the term of residence in Ukraine for presidential and parliamentary candidates. The Rada should consider decreasing the size of the electoral deposit to be paid to run for election or provide for the possibility of filing lists of signatures in support of candidacy as an alternative option to the monetary deposit (e.g., a certain number of voter signatures, or signatures of members of parliament or local councils). In addition to those candidates who currently qualify for the return of the deposit, the deposit should be fully or partially reimbursable also to those unsuccessful candidates who receive a certain percentage of the votes cast.

Before the first round, the CEC initially registered 44 presidential candidates. 47 applicants were rejected on various grounds, most commonly for failure to pay the monetary deposit. Five candidates withdrew before the first round, resulting in 39 candidates on the ballot including four women, 20 self-nominated candidates, and 19 party-nominated candidates. In the second round, incumbent President Petro Poroshenko (independent) lost to the first-round frontrunner Volodymyr Zelenskyi (the Servant of the People Party). Domestic and international observers did not report significant irregularities during candidate nomination and registration.

Election campaigning and media coverage of elections The Presidential Election Law provides for several instruments aimed at ensuring a level playing field during the election campaign: political advertising must be clearly marked; media must announce the rates for each minute/second of political advertising and ensure equal conditions for all the candidates while placing their election advertising; candidates can launch their election campaign only once they have been registered for the election; and there is a provision for free airtime on public TV/radio for election campaigning purposes.

In the first round of the presidential election on March 31, 2019, a record number of 39 presidential candidates were on the 80- centimeters-long ballot: 35 men and four women.

16 IFES Ukraine The election campaign was largely peaceful and competitive, and candidates were generally able to campaign freely without undue restrictions, according to the IEOM. However, the campaign was marred by instances of negative campaigning and abuse of state resources, as well as cases of votebuying and involvement of public institutions and officials in the election campaign. Police need to take further action to ensure that those who committed criminal and administrative offenses related to election campaigning are effectively prosecuted and do not enjoy impunity. State bodies should issue clear instructions to public officials and other employees setting standards for their behavior during the election to prevent the abuse of administrative resources and public office.

The Presidential Election Law provides only a vague definition of what is considered election campaigning and fails to draw a clear line between the campaign activities of the incumbent and activities related to the exercise of his/her official duties as president during the campaign. Poroshenko utilized this legal flaw effectively by de facto using his office for campaigning purposes (i.e. during the so-called Tomos tour and similar events). The lack of clear legal definitions of what is considered campaign activities has repeatedly been criticized by ODIHR. The Presidential Election Law should provide clear guidance on what should be considered informational coverage of the election, election campaigning, and official activities of public office holders who run as candidates.

In the 2019 election, most prospective candidates began their election campaign before their official registration as candidates by the CEC. They also placed political advertising during the campaign silence period including on election day and afterwards, prior to the calling of the second round. The Presidential Election Law should introduce effective measures to deter prospective presidential candidates from starting their campaigning early or in violation of campaign silence provisions. Such measures could include introducing a formal registration procedure that obliges prospective candidates to register as presidential nominees, combined with a prohibition to place political advertising prior to their registration as prospective candidates as well as effective, proportionate, and dissuasive sanctions for failure to comply.

Media coverage of the campaign was far from balanced. During the first round, media coverage mainly focused on seven candidates, according to the IEOM. Debates, talk shows, and current affairs programs were mainly used by candidates to discredit their opponents rather than to present the program for their presidency. Certain TV channels gave most of their coverage to only one candidate. Unmarked promotional materials on media, also known as “jeansa” or “hidden political advertising,” were widely used during this election. The reasons for the unbalanced media coverage of the campaign are rooted in the concentration of media ownership in the hands of a few oligarchs, lack of proper state oversight over media campaign coverage, as well as a lack of proportionate, effective and dissuasive sanctions for media violations and low journalistic standards.

The Rada should consider strengthening the independence and expanding the mandate of the National Broadcasting Council to become an effective media oversight body. The Rada should also consider providing for the establishment of an independent media council in charge of providing recommendations and guidance to the media as to how to cover campaign events, and establishing effective, proportionate and dissuasive sanctions for violations. The Presidential Election Law should be amended to provide for a clear definition of “hidden political advertising.” The Presidential Election Law provides for mandatory debates in the second round between the two presidential candidates.

These debates should be organized by a public service broadcaster on the last Friday before the runoff election day during prime time. All expenses related to such debates are